Campbell v. Wilkinson

Case: 20-11002      Document: 00515749846          Page: 1     Date Filed: 02/19/2021




            United States Court of Appeals
                 for the Fifth Circuit                                  United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 20-11002                       February 19, 2021
                                                                          Lyle W. Cayce
                                                                               Clerk
   Casey Campbell,

                                                             Plaintiff—Appellant,

                                        versus

   Robert M. Wilkinson, Acting U.S. Attorney General;
   William Onuh,

                                                           Defendants—Appellees.


                   Appeal from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:20-CV-00638


   Before Haynes, Willett, and Ho, Circuit Judges.
   James C. Ho, Circuit Judge:
          Plaintiff brought claims of discrimination and retaliation under Title
   VII of the Civil Rights Act. The district court dismissed the suit under
   Federal Rule of Civil Procedure 41(b) on the ground that Plaintiff’s counsel
   failed to retain local counsel as required by local rules. We hold that dismissal
   was unwarranted and therefore reverse and remand for further proceedings.
Case: 20-11002       Document: 00515749846              Page: 2   Date Filed: 02/19/2021




                                         No. 20-11002


                                              I.
          Casey Campbell filed this lawsuit in the Northern District of Texas,
   alleging discrimination and retaliation by his employer, the Federal Bureau
   of Prisons, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
   § 2000e.
          A few days later, the district court’s Electronic Case Filing (ECF)
   system reminded Campbell’s counsel that, “if necessary, [attorneys] must
   comply with Local Rule 83.10(a) within 14 days or risk the possible dismissal
   of this case without prejudice or without further notice.” Local Rule 83.10(a)
   of the Northern District of Texas states that, absent leave of court or an
   applicable exemption, “local counsel is required in all cases where an
   attorney appearing in a case does not reside or maintain the attorney’s
   principal office in this district.”
          Campbell’s counsel neither resides nor maintains his office in the
   Northern District of Texas. Yet counsel did not obtain local counsel. Nor
   did he ask the court to waive the rule. Nor did he inform his client of the ECF
   notice or the local rule, or of his intention not to comply with either. He
   simply made a unilateral determination that the local rule did not apply to
   him, because he has practiced for decades in the Northern District of Texas,
   and because he currently lives and offices less than ten miles away in the
   neighboring Eastern District of Texas.
          Approximately six weeks after issuing the ECF notice, the district
   court reviewed the record, determined that counsel was not in compliance
   with the local rule, and dismissed the case without prejudice under Rule 41(b)
   of the Federal Rules of Civil Procedure.
          In response, counsel filed a motion to reconsider the dismissal and a
   motion to proceed without local counsel. The district court denied both
   motions. In doing so, the court noted that 45 days had elapsed between the




                                              2
Case: 20-11002       Document: 00515749846           Page: 3   Date Filed: 02/19/2021




                                      No. 20-11002


   ECF notification and the court’s order of dismissal, without counsel either
   obtaining local counsel or requesting leave to proceed without local counsel.
                                           II.
            Dismissal of Plaintiff’s Title VII claim under Rule 41(b) of the Federal
   Rules of Civil Procedure was not warranted. To understand why, however,
   we must examine both the text of Rule 41(b) and various past decisions of our
   court.
            Under Rule 41(b), “a defendant may move to dismiss the action or
   any claim against it” “[i]f the plaintiff fails to prosecute or to comply with
   these rules or a court order.” Fed. R. Civ. P. 41(b). It is well established
   that Rule 41(b) permits dismissal not only on motion of the defendant, but
   also on the court’s own motion. See, e.g., Morris v. Ocean Sys., Inc., 

730 F.2d 248, 251

 (5th Cir. 1984) (citing Link v. Wabash R.R. Co., 

370 U.S. 626, 631

   (1962)). The question nevertheless remains whether this particular dismissal
   on the district court’s own motion was warranted under Rule 41(b).
            This case does not involve a violation of either “these rules”—that is,
   the Federal Rules of Civil Procedure—or “a court order.” Fed. R. Civ.
   P. 41(b). It involves the violation of a local rule. But Rule 41(b) does not
   mention local rules. This absence of any express reference to “local rules”
   in Rule 41(b) thus raises the question whether it is ever appropriate to invoke
   Rule 41(b) based on nothing more than the violation of a local rule.
            Outside the Rule 41(b) context, we have observed that “[a] local rule
   must be adopted by a majority of the district judges and followed by all, in
   effect serving as a standing order within the district,” and that a local rule is
   accordingly equivalent to “a court order.” Jones v. Central Bank, 

161 F.3d 311, 313

 (5th Cir. 1998). But see 

id.

 at 313–14 (Smith, J., dissenting) (noting
   that various provisions of the Federal Rules of Civil Procedure, including
   Rules 6, 26, 30, 73, and 77, expressly apply to both court orders and local




                                           3
Case: 20-11002      Document: 00515749846           Page: 4     Date Filed: 02/19/2021




                                     No. 20-11002


   rules, and thus “indicate, with precision, that court orders are not the same
   things as local rules”).
          We have not taken that approach within the Rule 41(b) context,
   however. In Berry v. CIGNA/RSI-CIGNA, 

975 F.2d 1188

 (5th Cir. 1992), we
   reaffirmed that a “dismissal of plaintiff’s suit for failure to file a motion for
   default judgment, as required by local rule, [is] treated as dismissal for failure
   to prosecute” under Rule 41(b). 

Id.

 at 1190 (citing Williams v. Brown & Root,
   Inc., 

828 F.2d 325

, 326–27 (5th Cir. 1987)).
          So Berry did not dismiss under Rule 41(b) because a “local rule is a
   court order.” Jones, 

161 F.3d at 313

. Rather, Berry dismissed because it held
   that the particular violation of local rule presented there should be “treated
   as dismissal for failure to prosecute”—as permitted under the plain text of
   Rule 41(b). 

975 F.2d at 1190

 (citing Williams, 828 F.2d at 326–27).
          Our decision in Berry to analyze the local rule violation as a failure to
   prosecute, rather than as a violation of court order, could be decisive here.
   After all, unlike the local rule violated in Berry, it is harder to characterize a
   violation of the local rule presented here as a failure to prosecute.
          In Berry, counsel failed to comply with a local rule that required the
   plaintiff to move for default judgment. Had the plaintiff complied with that
   rule, the case would have been terminated. So the court had some basis for
   treating the plaintiff’s failure to move for default judgment, as required by
   local rule, as a failure to prosecute. See 

id.

 (“A dismissal for failure to file a
   motion for default judgment is equivalent to a dismissal for failure to
   prosecute. . . . [W]e treat the dismissal of Berry’s suit for failure to prosecute
   as an involuntary dismissal under Fed. R. Civ. P. 41(b).”).
          Failure to hire local counsel, by contrast, does not affect the timing or
   resolution of proceedings. So the rationale underlying Berry—that a violation




                                           4
Case: 20-11002         Document: 00515749846              Page: 5       Date Filed: 02/19/2021




                                          No. 20-11002


   of a local rule might constitute a failure to prosecute—does not appear to fit
   the local rule violation presented here.
           And even if we ultimately concluded that Berry applies here, dismissal
   of Plaintiff’s Title VII claim was demonstrably unwarranted. That is because
   Berry sets forth a strict framework that district courts must meet to justify
   dismissal with prejudice—and one that the district court plainly failed to
   meet here. 1
           Although we review a dismissal for failure to prosecute for abuse of
   discretion, we recognize that dismissal with prejudice is a severe sanction.
   Accordingly, we are careful to limit a district court’s discretion to dismiss a
   case with prejudice. See, e.g., Berry, 

975 F.2d at 1191

; Price v. McGlathery, 

792 F.2d 472, 474

 (5th Cir. 1986); Callip v. Harris Cty. Child Welfare Dept., 

757 F.2d 1513, 1519

 (5th Cir. 1985).
           As Berry makes clear, “[w]e will affirm dismissals with prejudice for
   failure to prosecute only when (1) there is a clear record of delay or
   contumacious conduct by the plaintiff, and (2) the district court has expressly
   determined that lesser sanctions would not prompt diligent prosecution, or
   the record shows that the district court employed lesser sanctions that proved
   to be futile.” 

975 F.2d at 1191

.




           1
             We acknowledge that the district court here dismissed this suit without prejudice.
   But we “treat the dismissal of [Campbell’s] case as a dismissal with prejudice.” 

Id. at 1191

.
   That is because, “[w]here further litigation of [a] claim will be time-barred, a dismissal
   without prejudice is no less severe a sanction than a dismissal with prejudice, and the same
   standard of review is used.’” 

Id.

 (quoting McGowan v. Faulkner Concrete Pipe Co., 

659 F.2d 554, 556

 (5th Cir. 1981)). Campbell’s Title VII claim is subject to a 90-day limitations
   period. Where, as here, a Title VII complaint pursuant to an EEOC right-to-sue letter is
   later dismissed, the 90-day limitations period is not tolled. 42 U.S.C. § 2000e-5(f); Berry,
   

975 F.2d at 1191

. So Campbell is time-barred from bringing his suit again.




                                                5
Case: 20-11002       Document: 00515749846           Page: 6     Date Filed: 02/19/2021




                                      No. 20-11002


          Moreover, in most cases where we have affirmed a dismissal with
   prejudice, we have found at least one of three aggravating factors: “(1) delay
   caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to
   the defendant; or (3) delay caused by intentional conduct.” 

Id.

 (quotations
   omitted).
          This case fails this analytical framework at every turn. To begin with,
   there is no “clear record of delay or contumacious conduct by the plaintiff”
   in this case. 

Id.

 Indeed, counsel did not inform Campbell about Local Rule
   83.10(a) or the ECF notification.            Counsel simply made a unilateral
   determination not to hire local counsel, based on his conclusion that the local
   rule did not apply to him. So the failure to comply with local rules here falls
   entirely on counsel.
          It is also far from obvious that the amount of time elapsed here is
   sufficient to constitute a “clear record of delay” in any event. 

Id.

 After all,
   “[t]he decisions of this court affirming Rule 41(b) dismissals with prejudice
   involve egregious and sometimes outrageous delays.” Rogers v. Kroger Co.,
   

669 F.2d 317

, 320–21 (5th Cir. 1982) (collecting cases involving multi-year
   delays). In Berry, by contrast, we concluded that the short delay there was
   insufficient to constitute a “clear record of delay.” 

975 F.2d at 1191

. Here,
   the district court did not explain why a mere 45-day delay, without more,
   justified the severe sanction of dismissal with prejudice. Cf. Price, 792 F.2d
   474–75 (upholding a dismissal for a delay of almost a full year where counsel
   also failed to file a pretrial order and failed to appear at a pretrial conference).
          And even setting all that aside, there is no indication that the district
   court either “employed lesser sanctions that proved to be futile” or
   “expressly determined that lesser sanctions would not prompt diligent
   prosecution.” Berry, 

975 F.2d at 1191

.




                                            6
Case: 20-11002         Document: 00515749846              Page: 7       Date Filed: 02/19/2021




                                          No. 20-11002


           Nor is there any record evidence to establish any of the aggravating
   factors discussed in Berry: The delay here was caused entirely by counsel,
   not by Campbell. Defendants were not prejudiced because, as of the date of
   dismissal, no responsive pleadings were due and neither defendant had
   appeared in the case. And there is no evidence that counsel intended to delay
   proceedings. He may have wrongly concluded the local rule did not apply to
   him. But he was otherwise ready and prepared to litigate Campbell’s case
   himself.
           In sum, the record shows neither a clear record of delay or
   contumacious conduct, nor the futility of lesser sanctions, nor any
   aggravating factor.
           Dismissal of Plaintiff’s Title VII claim under Rule 41(b) was
   unwarranted here.           We therefore reverse and remand for further
   proceedings. 2




           2
              Campbell also appealed the denial of his motion for leave to proceed without local
   counsel, filed together with his Rule 59 motion. He contends that his attorney’s long
   experience with the Northern District of Texas and close proximity to the courthouse
   should have supported an exemption from the local counsel requirement. We leave this
   issue for the district court to address in the first instance on remand.




                                                7